After posting on one judge’s opinion of against citations in footnotes, for the sake of balance, here is Bryan Garner’s opinion against putting them anywhere else but footnotes.

When it comes to writing briefs, let the court rules dictate which method you use. If a court or judge goes to the trouble to address such details, there is a reason. Ignore the court’s preference at your own risk! -CCE

[I]n the February 2014 issue of the ABA Journal, and in the corresponding ABA Journal Law News “Bryan Garner on Words” column, “Textual Citations Make Legal Writing Onerous, for Lawyers and Nonlawyers Alike,” Garner promotes a suggestion for writing briefs and memoranda. . . . The suggestion is simple: Instead of including bibliographical material — the numerical citation used to find a case or legal authority — in the text of a legal document, Garner suggests publishing this material in a footnote.

The Bluebook® gives us a uniform way to cite to legal authorities. Imagine the breadth of legal writing without a common and reliable citation form to research and locate cases and other sources of law.

Theoretically, each new edition should include citation format to new sources for legal writing, such as the Internet. Unfortunately, every new edition to The Bluebook® does not limit itself to finding new sources of legal opinions and other types of legal writing. Invariably, the editors “tweak” minutiae.

I taught The Bluebook® for many years in legal writing classes and seminars. As the years went by, I began to dread each new edition and the necessary memorization of every new rule that changed already perfectly acceptable and logical citation format. The editors’ propensity to make minor changes to established citation formats made many question the editors’ reasons for their numerous revisions.

Bryan Garner expressed similar issues with The Bluebook®, which he shared in this article from the ABA Journal: “The Bluebook’s 20th edition prompts many musings from Bryan Garner’ at http://tinyurl.com/qbysgbk. Mr. Garner refers to the many minor revisions as ‘nettlesome changes,’ and does an excellent job of explaining why. -CCE

You finally finished drafting the argument section of your brief; you are mentally spent. So for the conclusion you copy and paste: ‘For the foregoing reasons, Defendant asks this Court to grant its motion.’ Yes, it feels a little anticlimactic and abrupt, but at least the brief is done. Perhaps you think that judges aren’t paying attention by the end anyway.

But the next time you are tempted to end your brief this way, consider that Bryan Garner, in Legal Writing in Plain English, called this type of conclusion ‘a formulaic cop-out that says nothing.’ Yikes.

Writing a strong conclusion that actually says something can be hard work. But here are some tips to get you started on ending strongly: . . . .

Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientist Steven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon ‘the curse of knowledge.’

So what is the cure for this affliction? Herrmann recommends empathy for the reader. ‘Put yourself in the reader’s state of ignorance,’ he counsels, “and write for that audience.’ Pinker suggests testing your draft on people who don’t already know what you’re trying to tell them:

A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.

Bryan Garner’s latest article in in the ABA Journal is titled Ten Tips for Better Legal Writing. Some Garner of his tips are especially appropriate for law students, who could appropriately paste ‘Don’t rely exclusively on computer research’ on the wall by their work space. That would serve as a reminder that unfocused computer searches are like a box of chocolates–you never know what you’re going to get. Garner also advises legal writers to be neither too tentative nor too cocksure in their conclusions, both of which are hazards for beginning law students. And Garner’s tenth tip would improve the professionalism of many a student paper: ‘Proofread one more time than you think necessary.’

Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!] . . . .

[J]udge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put ‘at’ Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled ’How I Interpret Statutes and the Constitution,’ Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:

Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’

Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’ Then he can read the facts in context.

Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’

Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .

(‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. We seek to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain-English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all. . . .

If Raymond Ward says it, you can take it to the bank. I have followed his legal writing blog for years. Look for sound advice on superb legal writing. -CCE

Today I attended a triple-feature CLE by Bryan Garner: Advanced Legal Writing & Editing, The Redbook, and Making Your Case. To see whether Bryan’s spring tour will visit your city, click here to see the schedule. What I want to talk about this evening is what I learned in the Redbook portion of the seminar.

For years, I have had the first edition of the Redbook on my office bookshelf. For those unfamiliar with this book, it’s a style manual for legal writers. If you have a question about the right word, right punctuation, or right way to do something in legal writing, this book endeavors to answer your question. I’ve found it a useful reference for answering questions that arisen when writing a brief or editing another’s brief.

First, this preface: I am not one who immediately buys the next edition of whatever if the current edition remains serviceable. I use so-called outdated versions of the Bluebook and ALWD Citation Manual, because they still answer any question I have ever had about how to cite something. So since the first edition of the Redbook has served me well, I did not rush out to buy the second or third editions.

Having said that, here is my point: if you don’t have the third edition, get it. . . .

Mr. Ward gives us a brief overview in these two paragraphs. In the remainder of his post, Mr. Ward expands on his variations for citations in footnotes and the preferences of Fifth Circuit judges I mean no disrespect to Mr. Garner, but if Mr. Ward gives advice on legal writing, I pay attention. -CCE

Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.

Fast-forward 13 years. Bryan Garner writes an article for the ABA Journal recommending the use of footnotes for legal citations—a position he’s held since I took my first Garner seminar in 1998. His fellow Texans Rich Phillips and Jason Steed write blog posts begging to differ. Different decade, pretty much the same debate.

Count me as one who disagrees with putting citations in footnotes. Mr. Garner has advocated this position for some time, and he has won some converts.

When I am reading a brief or opinion, I want to look at the citation at the time I am reading the argument. The strength of the authority will influence how persuaded I will be by the argument. Because persuading the reader is basically what legal writing is all about, I do not want my reader to lose focus or be distracted in any way. For me, having to move my eyes down to a footnote to find the authority used for an argument would tedious and irritating. I am afraid that I will never agree with Mr. Garner on this point. -CCE

In his February ABA Journal column, Bryan Garner continues his long-running campaign for footnotes in judicial opinions. He argues that citations in the text make legal writing cumbersome. And he points out that while they might have been practical in the days of the typewriter, now “we can easily sweep those interruptions out of the way.”

Garner admits that not everyone agrees with him; so far, only a minority of judges has adopted his proposal. . . .